A couple friends have suggested a Senate legislative scenario that has significant merit, enough so that I am again updating my projections for the legislative outlook.

Last week I projected that Senator Reid would try to move legislation on the Senate floor through the regular order, probably fail at the beginning of the process, then shift to a fast-track reconciliation path, blaming Senate Republicans for forcing him to use hardball procedural tactics.

For any Senate bill, the beginning of the legislative process is the motion to proceed. Before debate and amendments begin, the Senate must agree to spend time on the bill. Under regular order, the motion to proceed is debatable. “Debatable” in effect means “can be filibustered,” and you need 60 votes to shut off a filibuster – this is called invoking cloture. This means that at least 60 Senators need to agree that the Senate should spend time on a bill for the amendment process to begin. Amendments are also debatable, and so is final passage. Each stage of the regular order process therefore requires Leader Reid to have 60 votes, including the preliminary phase before debate on the bill begins.

Based on input from these friends, I have reevaluated several assumptions I made last week. The last one is key.

  • I was guessing that some Senate Democrats would be so nervous about the substance of the Baucus bill, that they might not only vote no on final passage, they might oppose invoking cloture on the motion to proceed. I now think all Senate Ds will support invoking cloture on the motion to proceed, even if some might be undecided on final Senate passage.
  • There are now 60 Senate Democrats. If Leader Reid holds all of them, he does not need Senator Snowe.
  • Senate Republicans might not oppose the motion to proceed.

These friends pointed out that Senate Republicans probably prefer to debate health care reform under regular order than under the reconciliation process. It’s hard to amend a reconciliation bill, and time limits bring the floor process to a conclusive end in a limited amount of time. Under regular order, it is easy to offer amendments to the bill, even if it’s hard to adopt them. And under regular order the debate and amendment process can continue forever, unless there are 60 votes to stop it. Senate Republicans trying to kill a bad health care reform bill probably have an easier time doing so under regular order, if they think they can split Senate Democrats with amendments and make moderate Democrats uncomfortable supporting the final product.

This is what happened to immigration reform. The Senate began debate and amendments, then tied itself up in knots. There was never a 60 vote coalition to support shutting off debate, and the Majority Leader eventually had to give up and pull the bill from the calendar. Technically, immigration reform was never “voted down,” because it never came to a final vote. It just died because its supporters could not find 60 votes to invoke cloture and bring the process to a definitive conclusion.

Oddly, Senate Democrats and Senate Republicans might both prefer regular order to reconciliation. Senate Democrats would avoid the expected Republican accusation of process abuse, and Senate Republicans would anticipate a higher probability of killing a bad bill by amendment and filibuster.

The same could happen with health reform, and I now believe this is the likely path the Senate will travel. I think there is a high probability that either Reid will have 60 Democrats supporting the motion to proceed, or Senate Republicans will support it, or both. I think the regular order path is more likely than I projected last week, and the reconciliation path less likely.

My updated probabilities are therefore:

  1. Cut a bipartisan deal on a comprehensive bill with 3 Senate Republicans, leading to a law this year; (0.1%)
  2. Pass a partisan comprehensive bill through the regular Senate process with 60 59 Senate Democrats + one Republican, leading to a law this year; (50%)
  3. Pass a partisan comprehensive bill through the reconciliation process with 51 of 59 Senate Democrats, leading to a law this year; (20%)
  4. Fall back to a much more limited bill that becomes law this year; (24.9%)
  5. No bill becomes law this year. (5% chance)

There is a crucial corollary that opponents of this bill need to understand. If the bill is considered under regular order, Leader Reid will probably try to encourage nervous moderate Democrats to split their votes. Leader Reid needs 60 votes to stop a filibuster, whether it’s of the motion to proceed, an amendment, or the final passage vote. Once he has invoked cloture with 60 votes and closed off debate on any one of those questions, he only needs 51 votes on the actual question. So you need 60 votes to get the vote on final passage, but only 51 votes to pass the bill.

I expect Leader Reid might say to a nervous Senate Democrat, “Stick with me on the procedural votes.” Vote with me to invoke cloture whenever I need it, so the Republicans can’t kill this with a filibuster. If you need to vote no on amendments or on final passage to please people back home, that’s fine, since I only need 51 votes there. You can split your vote.

This tactic was made famous by Senator John Kerry (D-MA) during the 2004 campaign when he said of his votes to authorize the use of force in Iraq: “I voted for it before I voted against it.” He voted aye on cloture, and no on final passage. He split his vote. Only he knows why he highlighted this during a campaign.

Watch out for Democratic Senators who are considering voting for (cloture on) the Baucus bill before voting against (final passage of) it. If your Senator votes for cloture, he or she has enabled passage of the bill, even if he or she votes no on final passage. If your Democratic Senator tells you he or she may oppose the health bill, ask if he or she will oppose cloture. The cloture votes are the ones that determine the outcome.

This tactic can be negated if it is publicly highlighted before it is used.

(photo credit: Esther)